United States: Practitioner Insights: Defending Environmental Criminal Cases

Last Updated: August 25 2017
Article by Neal McAliley

Federal environmental crimes cases can appear similar to other types of criminal or environmental cases because they comprise a hybrid of criminal prosecutions and environmental enforcement actions. Most federal environmental laws provide for criminal enforcement in addition to administrative and civil remedies. Criminal prosecutions allow agencies to bring enforcement against individuals—not just the companies they work for—and the ability to seek jail time.

Prosecutors have the same investigative tools available to them as in other criminal cases—the grand jury and search warrants—in addition to administrative discovery tools provided by environmental laws. As in all criminal cases, the government must prove violation of an environmental law beyond a reasonable doubt.

Despite their common features, these cases can present different dynamics for lawyers used to handling only criminal or only environmental cases. Criminal lawyers find that environmental crimes cases are often far more regulatory than the typical criminal case. They also find that they often cannot apply common criminal defense strategies. On the other hand, environmental lawyers who are used to representing parties in administrative and civil enforcement matters find criminal proceedings change many of the usual dynamics of dealing with agencies, sometimes in ways that favor the defendant.

From a practitioner's perspective, it is critical to take a holistic approach—combining skills from the environmental and criminal practice areas—when handling these complex cases. This article highlights six fundamental qualities that make environmental criminal proceedings different from a practice perspective for lawyers representing a defendant.

Mens Rea, More of a Practical Defense Environmental criminal statutes generally require lesser showings of the defendant's bad intentions than do many other types of federal crimes. This makes the job of prosecutors easier at trial, but also provides opportunities for defendants.

Almost every criminal statute requires proof that the defendant acted with a certain mental state (mens rea). Usually, this means the government must prove that the defendant acted while knowing he or she was dealing with some sensitive or prohibited item, or that he or she affirmatively intended to violate the law or defraud someone. In typical criminal cases, contesting proof of a defendant's intent is often the focus of a defense lawyer's strategy because it can be hard to prove beyond a reasonable doubt what was in a person's mind.

The mens rea required for environmental crimes is far lower than many other types of crimes. Most environmental criminal statutes require only proof of general intent, or knowledge of the facts involved in the prohibited conduct, but not knowledge that the conduct was illegal.

"Knowingly violating" the statute, regulations and/or permits is a felony under the Clean Water Act at 33 U.S.C. § 1319(c)(2), the Resource Conservation and Recovery Act, and a misdemeanor under the Endangered Species Act at 16 U.S.C. § 1540(b)(1). But federal courts—such as the U.S. Court of Appeals for the Second Circuit in a 2001 ruling in United States v. Weintraub—have made it clear that "the phrase 'knowingly violates' requires knowledge of facts and circumstances that comprise a violation of the statute, not specific knowledge that one's conduct is illegal.

Some environmental statutes set out strict liability offenses, where a defendant can be convicted without any showing that he knew the facts or law that make up the offense, such as the misdemeanor provision under the Refuse Act at 33 U.S.C. § 411. Other statutes criminalize negligent conduct, such as the Clean Water Act at 33 U.S.C. § 1319(c)(1).

Even those environmental crimes that require proof that a defendant knew his conduct was illegal can be easy to prove against defendants who work in highly regulated industries. This means there is often little difference in the level of proof required to bring an administrative, civil, or criminal environmental case. As a result, meeting the burden of proving mens rea can be relatively easy for an environmental crimes prosecutor, and it can be difficult to defend a case on this ground.

The fact that mens rea is often a weaker legal defense does not render it irrelevant in defending environmental cases.

For most criminal laws, an overlap exists between what is illegal and immoral. For instance, most people agree that selling crack is not only illegal, but also wrong. General intent crimes in such cases effectively require proof of mens rea, because an intention to act wrongfully is interwoven with knowledge of the facts.

In environmental cases, conversely, there is often a disconnect between what is illegal and immoral. That is because many environmental crimes are regulatory violations, which do not punish the underlying conduct but penalizes conduct undertaken without proper legal authorization.

A hunter who shoots what he thinks is a coyote acts legally if he identified the animal correctly, but has committed a crime if it turns out to be a protected wolf. This means environmental criminal defendants are often viewed more sympathetically by prosecutors, judges, and juries than the typical criminal defendant. For a defense lawyer, the fact that illegal conduct wasn't obviously wrong can be helpful in persuading regulators not to make a criminal referral, negotiating a settlement, presenting the evidence to a jury, and advocating for a lighter sentence.

Legal Defenses More Important Than Factual Defenses Environmental crimes cases are often much more legally complex than typical criminal cases. This makes them more challenging for many general criminal defense lawyers, and allows environmental lawyers to raise legal defenses more effectively than they can in other types of enforcement actions.

For most federal criminal statutes, the law is relatively simple and clear cut. Most criminal provisions codified in Title 18 are short, freestanding statutes, which define in their text both the prohibited conduct and the penalty. For instance, 18 U.S.C. § 371 defines conspiracy, 18 U.S.C. § 1001 addresses false statements, and 18 U.S.C. § 1030 tackles computer fraud, all in just a few pages of the United States Code. As a result, typical criminal cases are much more about proving the facts than construing the law.

In contrast, the conduct prohibited in environmental criminal provisions is closely tied to complex regulatory regimes. Environmental criminal statutes define criminal conduct by reference to a larger body of regulatory requirements. For instance, the primary criminal provision of the Clean Water Act provides that "[a]ny person who . . . knowingly violates section 1311, 1312, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any permit condition or limitation implementing any of such sections in a permit issued under section 1342 of this title by [EPA] or by a State. . ."is guilty of a felony.

The referenced sections themselves reference other sections of the Act. For example, Section 1311(a) of the Clean Water Act provides that "[e]xcept in compliance with this section and sections 1312, 1316, 1317, 1328, 1342, and 1344 of this title, the discharge of any pollutant by any person shall be unlawful. "One cannot determine what conduct is criminal without referring to other sections of the Clean Water Act, federal and sometimes state agency regulations implementing the Act, and sometimes a permit written by a federal or state agency.

Navigating the complex legal regimes that underlie criminal charges can be difficult for a lawyer not versed in environmental law. Even finding applicable guidance documents can be difficult if one does not know where to look. On the other hand, attorneys have opportunities to defend cases on legal theories that are unavailable in the typical criminal case.

Commonly, there is no reported case construing the specific regulations at issue in a case. The regulations themselves can be technical and complex because they were not written for the purpose of criminal enforcement. This means courts hearing environmental criminal cases are often the first to apply and construe the specific legal requirement at issue. This creates opportunities to construe statutes and regulations in ways that can undercut a prosecution theory. This is especially true if one knows how to find and apply the body of agency guidance that exists regarding those rules.

An example of how legal defenses can be more effective in environmental criminal cases was the 2009 ruling by the U.S. District Court for the Southern District of Florida in United States v. Berdeal involving a Lacey Act prosecution for importing snook fillets from Nicaragua to Florida. The Lacey Act makes it a crime to import fish in violation of state law.

Florida fishing regulations prohibit possession of snook for commercial sale. Although there was no question that the fish was snook, the underlying Florida fishing regulations did not make it clear that they applied to snook caught outside of Florida waters. The defense used this loophole to argue that if the Florida fisheries regulation is silent about where the fish are caught then the regulation is presumed to apply only to fish caught in state waters. The federal district court agreed with this interpretation, and dismissed the charges. This is one of many examples of environmental crimes where defendants can raise creative legal defenses that are based on the technical nature of the environmental laws.

Less Agency Deference Federal courts give regulators less deference on legal issues in environmental crimes cases than in administrative or civil enforcement actions. This creates more opportunities for defendants to challenge agencies' interpretations of statutes and regulations.

Agencies generally receive deference from courts regarding the interpretation of applicable law. The 1984 U.S. Supreme Court held in Chevron, U.S.A., Inc. v. Nat. Res. Def. Council that courts will defer to an agency interpretation of a statute it administers if the underlying statute is not plain on its face and an agency's interpretation is reasonable. A subsequent Supreme Court ruling in 1997, Auer v. Robbins, took the Chevron doctrine one step further with courts giving even more deference to an agency's interpretation of a regulation it promulgated.

Agencies use that deference to great effect in administrative and civil enforcement cases. It is normal for agency counsel to be directly involved in those cases, and judges often lean on them to explain the complex legal regimes. Administrative enforcement actions are usually heard first by administrative law judges, many of whom served as agency lawyers and learned the law from a regulator's perspective. It can be very hard for a defense attorney to prevail on legal defenses in this context.

Environmental crimes cases, however, present different dynamics that reduce the deference given to agencies in their interpretation of the statutes. There are interpretive doctrines in criminal cases which run counter to the usual rules of deference to agencies. For instance, the U.S. Supreme Court has ruled in multiple cases that the rule of lenity allows courts to construe a statute in favor of a criminal defendant if a statute is ambiguous. In other cases, the Supreme Court has ruled that if a statute or regulation is written in a way that person of ordinary intelligence has to guess at its meaning then the statute is void for vagueness.

Practical dynamics reduce the deference given to agencies' interpretations of the law. In criminal law more than civil or administrative contexts, there is a culture of courts parsing statutes word by word to determine what is, and what is not, allowed. When courts do that, they are less likely to simply defer to an agency's interpretation based on policy if it runs counter to the language of the statute or regulation.

In addition, some of the most "law and order" federal judges, many of whom are former prosecutors who handled traditional criminal cases, can be skeptical of criminal charges based on complicated regulatory regimes, especially where the government is asserting that it does not need to prove that the defendant had a specific intention to violate the law. Rather than giving the government more deference in construing the underlying law, these judges can hold government lawyers—and the agencies they represent—to a higher standard.

These dynamics create risks for government lawyers and opportunities for defense attorneys. For the government, bringing criminal charges allows for greater penalties and potentially greater deterrence, but also increases the risk that a court will interpret a statute or regulation in a way that undercuts the broader regulatory program. For defense counsel, an environmental criminal case is a much more favorable place to argue and win legal issues.

This dynamic is illustrated by the Ninth Circuit's 1997 ruling in United States v. Apex Oil Co. In that case, the government prosecuted a tanker company under the Act to Prevent Pollution from Ships for intentionally dumping into the ocean hundreds of metal drums and plastic bags of cargo-related crude oil residues scraped from the bottom of giant cargo tanks. Regulations under the Act applied to cargo-related oil residues, and "oil" was defined as "petroleum in any form.

"The defense successfully argued that this term did not clearly include the solid, tarry material removed from the tanks, in the context of industry practice to dump these materials at sea, and that the company was not fairly put on notice that it was considered oil. The district court accepted the defense argument, dismissed the charge, and the dismissal was upheld on appeal.

The ruling had the effect of not only exonerating the defendants of that charge, but also undercutting the entire Coast Guard program for regulating the disposal of such oil wastes. Presumably a federal court would have been less likely to accept these arguments if the defendants were not facing criminal charges, illustrating how environmental criminal cases present special risks for agencies.

Government Agencies Play Complicated Roles The interactions between regulators and environmental criminal defendants are different than those in many other types of criminal cases. In this regard, environmental criminal cases can be similar to health care and other federal criminal cases related to highly regulated activities.

Environmental regulators often have ongoing relationships with companies subject to criminal investigation and prosecution. This is because such cases often relate to incidents that occur at facilities that remain in operation and are subject to environmental permits. Those regulators also retain their own jurisdiction to bring administrative enforcement even if there is a separate criminal proceeding. The continuing involvement of regulators is one way that environmental criminal cases can be different than other types of matters where regulators completely stop talking to defendants once a criminal investigation or prosecution starts.

The existence of these ongoing relationships can be difficult for defense counsel to manage. Companies under investigation cannot stop communicating with regulators if they are subject to permits. Every conversation, email, and submittal can raise potential self-incrimination issues for the company and individuals involved.

On the other hand, regulators' involvement can present opportunities for defendants. Regulators can be in positions to inadvertently undercut a criminal investigation or prosecution. Since they already are in regular communication with regulated parties, regulators may say things that might help the defense. Most agency records are publicly available to anybody under the Freedom of Information Act and similar state public records laws. Since the subject matter of many environmental criminal proceedings relates to regulated activities, defense counsel can obtain discovery from those agencies that otherwise may be difficult to obtain directly from prosecutors. Where regulators pursue their own noncriminal enforcement, they may resolve a case in ways that undercut the seriousness of the offenses.

Sometimes, regulators oppose criminal enforcement. Their job is to solve problems at facilities, which requires them to be forward-looking. In my experience, they tend to be less punitive in response to past violations than criminal investigators and prosecutors. Sometimes regulators find the prospect of jail time to be excessive when it is aimed directly at people who they have known and worked with for years. Although their approval is not required for the government to bring a criminal proceeding, environmental regulators communicate their views about the propriety of criminal enforcement within the agencies, and sometimes also let the defendants know.

Role of Parallel, Connected Noncriminal Proceedings Similar to health care and accounting fraud criminal cases, environmental criminal cases offer greater potential for parallel proceedings than do many other types of criminal cases, which can make defending companies much more complicated.

The primary federal environmental statutes allow for administrative, civil, and criminal enforcement of the same requirements. For instance, 33 U.S.C. § 1319 of the Clean Water Act and 42 U.S.C. § 7413 of the Clean Air Act allow for enforcement of the same regulatory violations with administrative penalties, civil judicial remedies, and criminal charges. Moreover, nothing prohibits an agency from bringing criminal charges, plus civil or administrative penalties for the same conduct.

The nature of federal delegation of environmental programs increases the opportunity for multiple enforcement proceedings. Many major federal pollution control permits are issued by state agencies pursuant to delegation. To obtain delegation, those state agencies must have authority under state law to pursue enforcement. However, the EPA retains its oversight authority because these permits arise under federal law, for instance, as spelled out under 33 U.S.C. § 1319(a)-(b) of the Clean Water Act and 42 U.S.C. § 6928(a) of the Resource Conservation and Recovery Act (RCRA).

Other types of agency proceedings commonly come into play in connection with environmental enforcement. Some environmental laws allow the government to forfeit property linked to a violation. This is especially true for fish and wildlife statutes, such as the Lacey Act, which allow the government to forfeit products imported in violation of federal, state or foreign laws.

Some laws allow (or require) that parties convicted of a criminal offense be suspended or debarred from government contracts. For example, 42 U.S.C. § 7606(a) of the Clean Air Act prohibits federal agencies from contracting with parties convicted of crimes under that statute.

Still other provisions of federal and state law allow for regulatory agencies to suspend or revoke the operating licenses and permits of companies that violate environmental laws, such as 42 U.S.C. § 6928(a)(3), -(c) that authorizes the EPA to suspend or revoke RCRA permits based on violations. Although such proceedings are technically not supposed to be punitive, they feel that way to defendants.

Practical factors increase the potential for parallel proceedings in environmental criminal cases. Different people in the government bring different types of cases. Agency regulators usually control administrative enforcement and decide whether to suspend or revoke permits. Criminal cases, conversely, may only be brought by the U.S. Department of Justice. Although Justice Department criminal prosecutors are supported by agency personnel, sometimes these people are not the regulators themselves. For instance, criminal cases at the EPA are handled by a separate group of investigators (the Criminal Investigation Division) and supported by a separate group of lawyers.

The different constituencies within the agencies ultimately report to common managers, but they do not control the actions of the other constituency, and sometimes have relatively little communication. There is even less control and coordination between federal and state agencies related to non-criminal enforcement. This makes it difficult to negotiate global resolutions of enforcement matters that include all types of actions and agencies with jurisdiction.

In addition, different constituencies in environmental agencies are often driven to act separately based on media coverage. Environmental violations and controversies commonly receive greater attention in the media than other types of regulatory violations. Media attention is rarely favorable to a person accused of violating environmental laws. This puts pressure on various regulators and agencies to take action demonstrating they are doing their jobs. The fact that one agency is bringing enforcement can increase the pressure on other agencies to act.

It is not unusual for a company accused of an environmental crime to be subject to multiple enforcement and related proceedings regarding the same conduct This applies in major cases such as the Deepwater Horizon disaster and the Volkswagen emissions scandal and is true of less high-profile cases.

In one matter I was involved in, a seafood company was convicted of felonies under the Lacey Act for regulatory violations related to containers of imported fish. The company also was subject to civil forfeiture proceedings, which caused the loss of product that cost far more than the criminal fine because the government sold the fish and kept the proceeds.

Other proceedings included an effort to suspend the company from bidding on federal contracts and an effort by a state agency not to review the company's operating license. This dynamic of agencies seemingly "piling on" an environmental violator can occur in purely non-criminal contexts, but it is especially common where criminal charges are brought.

Lawyers representing companies being investigated or prosecuted for environmental crimes cannot approach their client's problem as just the criminal matter. The practical effect of losing an operating license, being debarred for government contracts, or even adverse media attention can be much worse for a company than a criminal conviction or fine. Resolving one proceeding can affect the odds of another type of legal proceeding emanating from another agency. These cases, therefore, can be very multifaceted.

Rethink Strategies in Agency Dealings The involvement of regulators and the availability of different avenues of enforcement can also require defense attorneys to rethink their instincts about sharing information with the government.

One of the earliest strategic choices for any lawyer representing a potential violator is how much information to share with the government. Most criminal defense lawyers start with the assumption that they should share as little information as possible. That is because criminal prosecutors must prove their cases beyond a reasonable doubt, and can have difficulty carrying their burden of proof where they have limited evidence.

On the other hand, most environmental lawyers are much more open with regulatory agencies and volunteer information about an incident, its causes, and what their client is doing to remedy the situation. This makes sense in the administrative and civil context because companies have ongoing relationships with regulatory agencies and must stay in their good graces, and because regulators usually seek to solve problems.

Environmental criminal cases can therefore create a conundrum for defense lawyers trying to determine how to proceed. If a case is clearly being pursued on a criminal level, then it makes sense to limit a potential defendant's admissions to the extent possible. However, it is not always initially clear how the government will proceed.

If there is a chance the agencies will proceed with administrative or civil remedies, then limiting the scope of communications with the government can backfire and serve to escalate the government's response.

For example, in another case I was involved in, the criminal defense attorney originally hired by the client decided not to say anything to government investigators working with regulators in an unfolding enforcement situation. This led the regulators to end their involvement and turn the entire matter over to criminal prosecutors. The client ended up being charged with felonies for conduct that might otherwise have been resolved with administrative penalties. This judgment call is among the most difficult and nuanced decisions private lawyers must make early in a case.

Conclusion Environmental crimes cases have features in common with both general criminal cases and other forms of environmental enforcement. But from a practitioner's perspective, it would be a mistake to see them as just another type of white-collar criminal case, or a more aggressive version of a typical environmental enforcement action.

These cases can confound some conventional wisdom of both the criminal defense and environmental law bars. Lawyers representing defendants in environmental criminal investigations and prosecutions are well served to rethink their assumptions when they handle these cases.

Originally published in Bloomberg BNA Daily Environment Report (August 21, 2017).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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